SUPREME COURT.

Timaru Herald, Volume L, Issue 4827, 25 April 1890, Page 3

SUPREME COURT.

A TEMOKA OA3E. At. the Supremo Court at Christchuroh on Wednesday, a Temuka csbb, Smith v. Kssery and Brown, was heard by Mr Justice Denniston. Mr Strioger appiared for the plaiDtiff. Defendant XBBory appeared m person and Mr Salmond for defendant Brown. In this case William Waimato Smitb, law student, of Cbristcburcb, was plaintiff, and William Ifsserr, plumber, of Ouristchurch, and Job Brown, merchant, of Temuka, defendants. The statement of claim was to tho effect that Edward Smith, contractor, deceased, late of Winchester, bad by his will, dated January 30, 1874, bequeathed his property to William Bush upon trust, who, after making certain necessary payments, was to pay lbs income arising frjm tho trust to decenied's wifo (who was also executrix under tbo will) during hor -widowhood, charged with tho education and bringing up of tfco children. After her deceaso tha property was to bo hold m trust for the children. Edward Smith died on November 13tb, 1875. Probntr) -was issued to William Bush. On April 6th, 1*76, the widow married William Essery. The estate comprised (inter alia) lands at Winchester and Goraldine. On August 14th, 1877, on William Bush's petition, Esfery was appointed trustee m his place ; but plaintiff asserted ho was not a fit and proper person. Shortly after Bush transferred to Essory tho wholo of tbo outstanding personal estate, including mortgages, of Smith, deccasod, but tho real oitatc, including the Geraldino and Winchester lands, remained vested m Bush. Essery called m tho mortgages, and invested the proceeds m freehold property at Temuka. In 1883 and 1884 Essery procured himself to be registered as proprietor under tho Land Transfer Act of the lands beforo mentioned and mortgaged part of tho lands to defendant Brown on August 14tb, 1885, for £90, and on May 27th, 1887, Brown foreclosed, and (was now tbo registered propriolor. On March 2<ttb, 1881, Essery transferred tho other land to Brown for £225, and the latter agreeing to pay Kesery anything above this amount ho sold the land. At the time of tho mortgage and salo Kssory was indebted to Brown, and no money passed. Tbo lands wero valued at £550. Brown, it wsb alleged, bad notice that tho lands were tbe subject of trust, when the transactions took place. Tbo plaintiff, son of tho testator, prayed that Es»ery might bo removed from tho trusteeship, somo other parson appointed, and tha estate administered under tbe direction of tho Court ; that Brown be ordered to give up tbo corliflcaten of title to tbo trustco to bo appointed, together with any ronts he had receivod, and that defendants pay the coats of the action and such other relief as tho Court might sco fit. In the statement of defence- filed on behalf of defendant Brown, many of tbo allegations wero admitted ; but it woo denied that he had acted wrongfully m procuring himself to bo registered us propriotor of the lands m question. Tho date of tho transfer was April 28rd, 1884. Defendant Brown admitted that hohadnoticoof tho land forming part of tho estate of Edward Smitb, deceased, but ho denied all tho other allegations m respect to this matter. Defendant pleaded that ho liasl no knowledge of tbo nuture of tho trusts declared by the will of the late Edward Smith, or of tbo fact that tho transactions referred to constituted breucl.es of trust on the part of defondant Ksicry, but ho (Brown) bcliovod that Kssory had full power and authority to doal as ho had done with the said landß. The defendant Rssery admitted that ho had disposed of the lands ontrmted to him, but said that ha had done it under tha influenco of Mr Brown's " persuasive powers." Ho admitted ho had acted wrongly. Afler hearing a largo quantity of ovidenco, arid tha n'kirees of Uarncd counsel, His Honor took timo to coueider.